Legal

Customer Agreement (PaaS)

This Customer Agreement is between IXUP Limited ABN 85 612 182 368 (IXUP) and the purchaser of the Software subscription specified in the Order (Customer).

1 Software Licence

1.1 Licence. IXUP will make the Software available to Customer and grant Customer a non-exclusive, non-transferable licence to:

  1. install and host the Software in the Environment;
  2. use, and permit End Users to access and use via the internet as a cloud service, the Software to conduct secure data analytics;

in each case, solely for the Approved Purpose during the paid Licence Term subject to compliance with the terms of the Agreement.

1.2 Licence Restrictions. Customer must ensure that:

  1. neither Customer nor any End User installs, hosts, accesses, uses, uploads data or logic to, uses the output of, or otherwise exploits the Software, except as permitted under clause 1.1;
  2. neither Customer nor any End User reverse engineers, decompiles or disassembles the Software, views or gains access to the source code to the Software, or uses the Software to provide any product or service that is an alternative, substitute or competitor to the Software;
  3. neither Customer nor any End User copies, develops any modification, enhancement, derivative work or other development of the Software or incorporates any Customer, End User or third party material into the Software (except as expressly permitted under the Approved Purpose);
  4. neither Customer nor any End User uploads to the Software any material that is unlawful, harmful, malicious, threatening, defamatory, obscene, infringing, offensive, sexually explicit, violent or discriminatory;
  5. neither Customer nor any End User removes any product identification, proprietary, trade mark, copyright or other notices applied to or contained in the Software;
  6. it downloads, installs and uses the current version of the Software made available by IXUP at all times and takes all reasonable measures to protect the security, confidentiality and integrity of the Software;
  7. no person other than Customer, and its authorised End Users, accesses or uses the Software; and
  8. it promptly notifies IXUP in writing if Customer wishes to permit a person other than Customer, or its authorised End Users, to access and use the Software.

1.3 Support Services. IXUP must provide Support Services for the current and immediately prior version of the Software for the duration of the Subscription Term. Customer must provide all information and assistance reasonably required by IXUP to perform the Support Services.

1.4 Professional Services. If Customer wishes to purchase Professional Services from IXUP, the parties must agree a SOW. Once executed by both parties, a SOW forms part of the Agreement.

1.5 Evaluation use. If IXUP permits Customer to evaluate the Software prior to purchasing a subscription:

  1. the licence in clause 1.1 is limited to access and use of the Software as installed in IXUP’s computing environment as a service for a period of up to 30 days (Evaluation Period) solely for Customer’s internal evaluation of the Software (without any right to use the Software for commercial, external or any other purpose);
  2. IXUP provides the Software “as is” and excludes all warranties, indemnities, obligations and liabilities under the Agreement for the duration of the Evaluation Period; and
  3. upon expiry of the Evaluation Period, Customer must immediately cease using and delete its copy the Software unless Customer purchases a subscription to the Software, in which case all terms of the Agreement apply from commencement of the paid Subscription Term.

2 Customer responsibilities

2.1 Usage responsibilities. Customer uses the Software at its own risk and is solely responsible for:

  1. ensuring that the Software is installed, hosted, accessed and used strictly in accordance with the Agreement. Customer is responsible for each act and omission of an End User in connection with the Agreement as though it were an act or omission of Customer;
  2. ensuring that the Approved Purpose, Customer’s and each End User’s use of the Software, and all data and logic uploaded to the Software, complies with all applicable laws, regulations and contractual obligations;
  3. obtaining all consents, licences and approvals necessary to lawfully collect, upload, store, process and disclose all data and logic (including that protected by Intellectual Property Rights, confidentiality, or privacy) uploaded to the Software and all output of the Software and the Approved Purpose;
  4. implementing all steps and controls necessary to secure the Environment, Software and data and logic uploaded to and output of the Software to the standards required under applicable laws, regulations and contractual obligations;
  5. providing all support and maintenance required by its End Users other than the Support Services; and
  6. the accuracy, truthfulness, completeness, veracity and legality of the output of the Software and Approved Purpose.

3 Fees, invoicing and payment

3.1 Fees. The Fees are payable in consideration of IXUP’s supply of the Software, Support Services and any Professional Services. Customer must provide information relating to its use of the Software as required to enable IXUP to calculated the Fees payable.  IXUP may increase the Fees at any time, unless agreed otherwise with Customer.

3.2 Invoicing and payment. IXUP must issue invoices for the Fees to Customer at the times specified in the Order or applicable SOW. Customer must pay all Fees invoiced by IXUP, without any set-off or deduction and in immediately available funds, by the method and within the period specified in the Order or SOW. All Fees invoiced by IXUP are non-cancellable and non-refundable.

3.3 Late Payment. If Customer fails to pay any Fees (that are not disputed in good faith) by the due date for payment, IXUP may:

  1. suspend the licence of the Software, provided that IXUP has given Customer notice of the failure and Customer has not rectified the failure within 14 days of the date of such notice; and
  2. charge interest at a rate of 2 percent per annum above the current published overdraft rate of the Commonwealth Bank of Australia,

in each case, from the due date for payment until the date that payment is made by Customer.

3.4 Verification. IXUP may on 14 days’ notice conduct an audit of Customer’s use of the Software and compliance with the Agreement from time to time during the Subscription Term. Customer must provide all access to the Environment, End Users, records, premises and personnel reasonably requested by IXUP in connection with any such audit. IXUP must bear the costs of any such audit unless the audit reveals that Customer has used, or permitted the use of, the Software in breach of the Agreement (including use in excess of any limitations set out in the Order), in which case, Customer must immediately:

  1. pay to IXUP all additional Fees payable in respect of any excess use (at IXUP’s then current list prices) in addition to IXUP’s reasonable audit costs; and
  2. take all other steps required to remedy the breach of the Agreement and prevent its recurrence at its own cost.

3.5 Taxes. The Fees are exclusive of all taxes, levies, withholdings, duties and other amounts imposed by taxing authorities. Where a supply is a taxable supply, all amounts payable must be increased by the amount of GST, VAT, sales tax, or other consumption tax payable in relation to the supply. All such taxes must be paid at the time any payment for any supply to which it relates is payable (provided a valid tax invoice has been issued for the supply).

4 Intellectual Property Rights

4.1 Ownership. All Intellectual Property Rights in and to the Software and output of the Professional Services, including those in any copy, modification, enhancement, configuration, derivative work or other development of the Software developed by or on behalf of Customer and End Users, vests or remain vested in IXUP or its licensors. If any such Intellectual Property Right vests in Customer or End Users, Customer hereby assigns, and must procure that each End User assigns, that Intellectual Property Right to IXUP with immediate effect. Customer must take all further steps (including execution of documents) necessary to give effect to this clause.

4.2 No other rights. Neither Customer nor any End User receives any right, title or interest in or to the Software other than the licence expressly granted to Customer under clause 1.1.

4.3 Notice of infringement. Customer must immediately notify IXUP in writing upon becoming aware of any:

  1. infringement or unauthorised use of the Software by any person, including any End User; or
  2. claim by any person that use of the Software by Customer in accordance with the Agreement infringes any copyright or patent owned by that person in Australia (IP Claim).

4.4 Remedial action. If the Software is the subject of an IP Claim, IXUP may (at its cost and option) either:

  1. procure the right for Customer to continue using the Software;
  2. modify the Software such that it no longer infringes the relevant Intellectual Property Rights; or
  3. terminate the Agreement and provide Customer with a pro-rata refund of any Fees paid in advance for use of the Software.

This clause 4.4 and clause 6.4 sets out Customer’s sole and exclusive remedy in respect of any IP Claim.

5 Confidentiality

5.1 Obligation of confidence. Each party (Recipient) must ensure that it keeps confidential and does not use or disclose any Confidential Information of the other party (Discloser) except as permitted by this clause 0.

5.2 Permitted use. The Recipient may use the Confidential Information of the Discloser solely to the extent necessary to exercise its rights and obligations under the Agreement.

5.3 Permitted disclosures. The Recipient may disclose Confidential Information of the Discloser:

  1. to the Affiliates, personnel and professional advisers of the Recipient that need to know the Confidential Information for the purposes of the Agreement and that are subject to binding obligations of confidence at least as stringent as those set out in this clause;
  2. to the extent required by law or the rules of any stock-exchange; and
  3. with the prior written consent of the Discloser.

To avoid doubt, either party may make public statements about the existence of the Agreement and the fact that it is a supplier or customer of the other (as applicable), including referencing the other party’s name and logo, without being in breach of this clause.

5.4 Usage data and analyses. IXUP may:

  1. use data relating to Customer’s and End User’s use of the Software for billing, capacity planning, compliance, security, integrity, availability, providing and improving the Software; and
  2. freely create, use, disclose and Process analyses, materials, data, insights, works and other things derived from (wholly or partly) use of the Software in anonymised and aggregated form such that neither Customer nor End Users are identifiable.

6 Warranties and indemnities

6.1 Warranties. IXUP warrants that:

  1. the Software will operate substantially in accordance with its published specifications for a period of 90 days following being made available to Customer; and
  2. it will provide the Support Services and any Professional Services with due care and skill.

IXUP must, as Customer’s sole and exclusive remedy, repair or replace the Software or resupply any Support Service or Professional Service which does not comply with the warranties in this clause within a reasonable period of confirmation of the non-compliance.

6.2 No other terms. To the extent permitted by law, IXUP excludes all conditions, warranties and guarantees other than those set out expressly in the Agreement. Without limitation, IXUP does not warrant that the Software, Support Services or any Professional Service will be:

  1. continuous, free from errors, omissions, defects, security risks or vulnerabilities; or
  2. fit for any purpose or meet the requirements of Customer or any End User.

6.3 Non-excludable terms. If any condition, warranty or guarantee cannot be excluded at law, then to the extent permitted by law, IXUP’s liability for breach of such condition, warranty or guarantee is limited (at IXUP’s option) in the case of:

  1. Software, to the repair or replacement of the Software, the supply of equivalent Software, or payment of the cost of the same; and
  2. Support Services or Professional Services, to the resupply of the Support Services or Professional Services, or payment of the cost of the same.

6.4 IXUP indemnity. IXUP must indemnify Customer against all loss and damage suffered or incurred by Customer arising out of or in connection with any IP Claim in each case, except to the extent that the claim or breach is caused or contributed to by Customer, End Users or any third party product or service.

6.5 Customer indemnity. Customer indemnifies IXUP and its Affiliates against and must pay on demand all loss and damage suffered or incurred by any of them arising out of or in connection with:

  1. any claim relating to the installation, access to, use of, uploading of data or logic to, use or reliance on any output of the Software or Approved Purpose by Customer or End Users, including any claim made by a third party; and
  2. any breach of clause 1.1, 1.2, 2.1, 4 or 5,

in each case, except to the extent that the claim or breach is caused or contributed to by IXUP.

6.6 Conduct of claims. The indemnification obligation of a party (indemnifying party) under clause 6.4 or 6.5 in respect of any third party claim is subject to the other party:

  1. promptly notifying the indemnifying party of the third party claim;
  2. permitting the indemnifying party to control the defence of the third party claim; and
  3. providing (at the indemnifying party’s cost) all information and assistance reasonably requested by the indemnifying party in connection with the defence of the third party claim.

6.7 Sole and exclusive remedy. Without prejudice to the termination rights of each party:

  1. clause 6.4 sets out Customer’s sole and exclusive remedy in respect of the matters indemnified by IXUP; and
  2. clause 6.5 sets out IXUP’s sole and exclusive remedy in respect of the matters indemnified by Customer.

7 Liability

7.1 Exclusion of Indirect Loss. To the extent permitted by law, each party excludes any and all liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity for any Indirect Loss.

7.2 Limitation of liability. The liability of a party arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or any other basis in law or equity, in any Subscription Year is limited to an amount equal to the Fees paid or payable by Customer under the Agreement in that Subscription Year, subject to clause 7.3.

7.3 Unlimited liability. The limitation of liability in clause 7.2 does not apply to the liability of a party:

  1. under any indemnity given by that party;
  2. to pay Fees that are due and payable; or
  3. for any matter in respect of which liability may not be limited at law.

7.4 Injunctive relief. Customer acknowledges that damages are not a sufficient remedy for any breach of clause 1.1, 1.2, 2.1, 4 or 5 of the Agreement and that IXUP is entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or anticipated breach of those clauses (in addition to any other remedies).

8 Term, suspension and termination

8.1 Subscription Term. The Agreement will remain in force for the Subscription Term, unless terminated earlier in accordance with this clause 8.

8.2 Suspension. IXUP may suspend the licence granted pursuant to clause 1.1 during any period in which Customer is in breach of the Agreement (subject to clause 3.3(a) in the case of late payment).

8.3 Termination for cause. A party may terminate the Agreement with immediate effect on written notice if the other party:

  1. commits a material breach of the Agreement and fails to remedy that breach within 14 days of receipt of a notice specifying the breach and requiring it to be remedied. Any breach by Customer of clauses 1.1, 1.2, 2.1, 3.2, 4 or 5 is a material breach for the purposes of this clause;
  2. becomes subject or threatens to become subject to, any form of insolvency or bankruptcy proceeding, appoints a liquidator, receiver or administrator, enters into an arrangement with its creditors, ceases to trade or do business in the ordinary course or is otherwise unable to pay its debts as and when they fall due.

8.4 Consequences of termination or expiry. On termination or expiry of the Agreement:

  1. all rights to the Software granted under the Agreement cease immediately and Customer must immediately cease using and delete all copies of the Software in its possession or control; and
  2. Customer must immediately pay IXUP all Fees due and payable as at the date of termination or expiry and, if IXUP terminates pursuant to clause 8.3, all Fees payable for the remainder of the Subscription Term.

9 Miscellaneous

9.1 Entire agreement. This Customer Agreement, the Order and any SOW are the entire agreement between the parties in respect of their subject matter. In the event of any inconsistency between the terms of this Customer Agreement, the Order and any SOW, the terms of the document listed first will prevail to the extent of the inconsistency.

9.2 Amendment. IXUP may amend this Customer Agreement at any time by posting the amended version of this Customer Agreement at https://ixup.com/legal/customer-agreement-paas. Any amended version of this Customer Agreement will only apply to Orders entered into following the date of the amendment to this Customer Agreement.

9.3 Force Majeure Events. IXUP is not liable for any delay nor failure to perform its obligations under the Agreement to the extent such delay or failure is due to a Force Majeure Event.

9.4 Severance. If a provision of the Agreement is unenforceable, the provision will be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it will be severed without affecting the validity and enforceability of the remainder of the Agreement.

9.5 Transfer. Customer must not assign, subcontract, novate or otherwise dispose of its rights or obligations under the Agreement without the prior written consent of IXUP.

9.6 Waiver. A party waives a right under the Agreement only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

9.7 Third party rights. No person other than IXUP and Customer has the right to enforce any term of the Agreement (whether at law or otherwise) or approve any amendment to the Agreement.

9.8 Relationship of the parties. The parties are and will remain independent contractors. Nothing contained in the Agreement will be construed to create an agency, joint venture, partnership or other relationship between the parties.

9.9 Governing Law. The Agreement is governed by the laws of New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia (and relevant appellate courts) and waives any objection to proceedings being brought in those courts.

10 Definitions

In this Customer Agreement, these terms have the following meanings:

Affiliate means of a party means an entity that Controls, is Controlled by, or is under common Control with that party.

Agreement means the agreement consisting of this Customer Agreement, the Order and any SOW.

Approved Purpose means a specific approved use of the Software specified in the Order.

Confidential Information means information that is marked, designated or by its nature confidential relating to the business or affairs of a party or its Affiliate:

  1. including the terms of the Agreement and, in the case of IXUP, all source code to, IXUP Data in and pricing for the Software; but
  2. excluding any such information that is in the public domain (other than as a result of a breach of confidence).

Control in respect of a person, includes the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities, by agreement or otherwise, and includes the following:

  1. direct or indirect ownership of more than 50% of the voting rights of such person; or
  2. the right to appoint the majority of the members of the board of directors of such person (or similar governing body) or to manage on a discretionary basis the assets of such person.

End User means any person who uses the Software licensed to Customer.

Environment means Customer’s computing environment specified in the Order.

Evaluation Period is defined in clause 1.5(a).

Fees means the fees, costs and expenses for the supply of the Software and Support Services specified in the Order and any Professional Services specified in the applicable SOW.

Force Majeure Event means any incident, event, act or omission beyond the reasonable control of that party, including any acts of God, strikes, civil strife, riots, wars, fire, explosion, storm, flood, earthquake, failure of communications networks, subsidence, pandemics or epidemics.

Indirect Loss means:

  1. loss of profit, loss of revenue, loss of anticipated savings, loss of opportunity, loss of use, loss or corruption of data, loss of reputation, loss of goodwill, or loss of contract; and
  2. any loss that does not arise naturally or according to the usual course of things from a breach, act or omissions relating to the Agreement.

Intellectual Property Rights means intellectual property rights, including existing and future copyright, rights in designs, patents, semiconductors and circuit layouts and rights in trade marks, trade names and service marks, in each case, whether registered or unregistered and existing in Australia or elsewhere in the world and whether created before or after the date of the Agreement.

IP Claim is defined in clause 4.3(b).

IXUP Data means data, information or material comprised in the Software as provided by IXUP.

IXUP Support Services Policy means the document located at https://ixup.com/legal/support-services-policy/.

Order means an order form setting out the details of Customer’s purchased subscription to the Software as specified in any:

  1. IXUP Order Form in respect of the Software executed by the parties; or
  2. online order form completed by Customer and logged in IXUP’s customer relationship management system,

including details of the applicable Approved Purpose, Environment, Fees and Subscription Term.

Professional Services means any support, implementation, training, data migration or other service not forming part of the Support Services.

Software means the object code form of the IXUP Secure Data Analytics software specified in the Order, including any Updates.

SOW means a statement of work setting out the details of the Professional Services to be provided by IXUP, including the agreed scope and fees for the Professional Services.

Subscription Term means:

  1. the initial term of Customer’s subscription to the Software specified in the Order, including any Evaluation Period; and
  2. successive 12 month renewal terms thereafter, unless Customer provides notice of non-renewal at least 60 days’ prior to the expiry of initial term or renewal term (as applicable).

Subscription Year means a period of 12 months from the commencement of Subscription Term or an anniversary of that date.

Support Services means:

  1. online, email or telephone support for Software defects that require access or changes to the source code for the current and immediately prior version of the Software; and
  2. making Updates available from time to time,

in each case, in accordance with the IXUP Support Services Policy. The Support Services exclude help desk, diagnostic, onsite and other first and second line support services.

Updates means any new version, release, update, patch, fix, configuration or other modification of the Software made available by IXUP to its customers generally during the Subscription Term.

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